Wednesday, May 4, 2011

The Illinois Environmental Law Blog Has Moved!

Thank you very much for visiting the Illinois Environmental Law Blog.  You can now find updated blog posts and all of the content from this site at

Friday, March 4, 2011

Live Tweeting from Great Lakes Environmental Law Symposium

This afternoon, I'll be attending and live tweeting from the Great Lakes Environmental Law Symposium.  You can follow me at

Thursday, February 24, 2011

Please Join Us For Today's CBA YLS Environmental Law Meeting

Please join us for today's free meeting hosted by the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, which will take place at 12:15 pm - 1:15 pm at the Chicago Bar Association.

Our meeting will feature Illinois Pollution Control Board Member Carrie Zalewski, who will be speaking about practicing law before the Illinois Pollution Control Board. Ms. Zalewski was appointed to the Illinois Pollution Control Board by Governor Pat Quinn in 2009. During this presentation, Ms. Zalewski will provide an introduction to the background and organization of the Illinois Pollution Control Board. Ms. Zalewski will also discuss the different types of cases heard by the Illinois Pollution Control Board and will provide some tips and additional resources available for the practitioner.

We invite attorneys of all ages, law students, and interested members of the public to attend this presentation.  I hope to see you there!

Tuesday, February 22, 2011

State Appellate Court Allows Construction of "Megadairy"

The Appellate Court of Illinois, Second District, recently issued an opinion in Helping Others Maintain Environmental Standards v. Bos, Case Nos. 2-09-1283 & 2-10-0162, which concerned the construction of a livestock management facility in Nora Township, Jo Daviess County, Illinois.  The "Tradition South" dairy would have 6,850 "animal units" in the form of dairy cows and calves and would use three livestock waste holding ponds, one with dimensions of 300 by 855 by 20 feet; the second 760 by 850 by 20 feet; and the third 400 by 400 by 20 feet.  Bos sought the Department of Agriculture's approval of the dairy pursuant to the Livestock Management Facilities Act.  The Department ruled that "it was more likely than not" that the Livestock Act's provisions had been met regarding the Tradition South facility, and it approved its construction.

Plaintiffs filed an action in State court, challenging the Department's ruling and seeking preliminary and permanent injunctions halting construction of the facility under theories of private nuisance, public nuisance, and trespass.  Although the trial court issued a preliminary injunction that initially halted construction, the court ruled, after a trial on the merits, that a permanent injunction should not be issued.  The court also ruled that Plaintiffs did not have standing to challenge the Department's ruling.

On appeal, the Appellate Court affirmed the ruling that Plaintiffs did not have standing to challenge the Department's ruling.  The Court found that the "right to review administrative decisions is limited to those who were both parties of record to the agency proceeding and aggrieved by the agency's decision."  Because Plaintiffs were not parties of record (although they did participate in a public informational meeting), Plaintiffs did not have standing to challenge the administrative decision of the Department.  The Court held that the Livestock Act allowed Plaintiffs to pursue claims against the owner of the facility but not against the Department.

The Appellate Court held that the Trial Court "acted within its discretion" in refusing to dissolve the preliminary injunction (and thus Bos was not entitled to damages as the result of an improperly entered preliminary injunction).  However, the Appellate Court affirmed the ruling that a permanent injunction should not have issued, accepting the Trial Court's evaluation of the parties' experts:

"In the end, the trial court was faced with testimony from credentialed, experienced experts who arrived at opposite conclusions as to whether there was evidence of karstified carbonate bedrock on the proposed dairy site.  As stated, it is the trier of fact's role to resolve conflicts in the evidence, assess witnesses' credibility, and determine the weight to be given to their testimony.  The record supports the trial court's finding that Bos's expert witnesses, unlike plaintiffs' expert witnesses, conducted more site-specific analysis in arriving at their conclusions that there was no evidence of karstified carbonate bedrock below the containment ponds.  Accordingly, we cannot say that the trial court's decision, that plaintiffs failed to show that there was a high probability of groundwater contamination and were not entitled to a permanent injunction on that basis, is against the manifest weight of the evidence."

At the end of the day, it appears that Plaintiffs, a citizens' group and individuals organized to oppose the facility's construction, could not muster (or pay for) sufficient expert testimony to defeat the owner's expert.  They also had no recourse against the administrative agency, which had authority to give the green light to the owner to build the facility.  This is a typical example of an environmental citizen lawsuit in action.  Usually, environmental statutes allow the agency to make a decision with citizen input, and then presume that the agency decision is correct, with limited ability by the citizens to challenge the decision after the fact.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, February 21, 2011

Chicago Area Gets Major Investment In Electric-Vehicle Infrastructure

According to two stories in the Chicago Tribune (click here and here), $8.9 million will be invested in the Electric Vehicle Infrastructure Project, which promises 280 charging stations in the city and surrounding region by the end of 2011.  Here is how the project was described in the Tribune:

"San Diego-based 350Green LLC, the contractor that will install and manage the charging stations, said there will be 73 quick-charging stations and 207 Level 2 chargers. The 240-volt Level 2 type can add roughly 10 miles of range per hour to vehicles like the Chevrolet Volt, Nissan Leaf and Mitsubishi i-MiEV. The upcoming 2012 Ford Focus Electric is capable of adding 20 miles of range per hour at Level 2 but will not be equipped with a quick-charge port. Currently, quick-charge capability is limited to the Leaf and i-MiEV. . . .

"[Suzanne] Malec-McKenna [Commissioner, City of Chicago, Department of Environment] said roughly 50 quick-chargers and 170 Level 2 stations will be in the city proper, and the distribution extends more than 40 miles from the city center, encompassing 23 suburbs and multiple counties. Though all locations aren't finalized, they will include retail shopping centers, O'Hare and Midway airports and parking lots, as well as tollway oases. A map at the 2011 Chicago Auto Show announcement showed installations on Interstates 80, 90, 94 and 294."

The $8.9 million for this project comes from three sources--$6.9 million in private investments, $1 million from the Illinois Department of Commerce and Economic Opportunity, and $1 million of Clean Cities Grant funds from the federal American Recovery and Reinvestment Act.  As the Tribune articles indicate, however, there may be some growing pains here.  For example, the Ford Focus electric vehicles will not be able to plug into the quick-charging stations.  And, "as soon as Chicago's fast-charging stations are installed, they may be obsolete."

My opinion is that it is about time that investments are being made in these charging stations.  If we are going to realize the goal of getting away from gasoline-powered vehicles, in favor electric vehicles, then charging stations will need to be available.  This is just the first step in making that goal a reality.

What do you think: Is the State of Illinois and the City of Chicago doing the right thing here?  Please post your thoughts in the comments section.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, February 20, 2011

Illinois Pollution Control Board Dismisses Noise Pollution Case Against ComEd as Frivolous

The Illinois Pollution Control Board recently dismissed Chvalovsky v. Commonwealth Edison, Case No. PCB 10-13, which concerned alleged noise emissions from a transformer behind Plaintiff's house and transmission lines in the vicinity of Church Street and Laramie Avenue in Skokie, Cook County, Illinois. 

The Board held that Plaintiff's complaint failed to address the issue of when the alleged pollution began.  Moreover, Plaintiff's complaint alleges the violation of Section 24 of the Illinois Environmental Protection Act, which reads: "No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business or activity, so as to violate any regulation or standard adopted by the Board under this Act."  The Board found that Section 24 is not a stand-alone provision, although a violation of certain Board noise regulations could result in a violation of Section 24.  The Board held that Plaintiff's complaint does not allege the violation of any Board noise regulation or standard:

The complaint "does mention decibel level readings, but without any citation to the Board’s noise rules (numeric or nuisance), respondents cannot reasonably be expected to prepare a defense.  Because [Plaintiff] has not properly pled a violation of the Act or any Board noise regulation or standard, the Board finds that the complaint, as amended, still 'fails to state a cause of action upon which the Board can grant relief' and remains, by definition, 'frivolous.'  Accordingly, the Board cannot accept this matter for hearing."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, February 17, 2011

Asian Carp Bill Offered In the U.S. House of Representatives

Today, Representative Dave Camp (R-Michigan) offered an amendment to the House budget bill that would have closed locks to prevent infiltration of the Asian carp into the Great Lakes.
Four representatives from Illinois, including Judy Biggert, a Republican, and Danny Davis, a Democrat, all spoke to oppose the amendment.  The basic arguments against the amendment were three-fold: (1) closing the locks would be a job killer and hurt the economy, (2) closing the locks may not keep Asian carp out of the Great Lakes, and (3) other methods, such as the electric barriers, should be tried first before going to the extreme step of closing the locks.  Rep. Camp argued that there is no time to be patient--the locks should be closed immediately.

On a voice vote, the Asian carp amendment to the budget bill was rejected.  Although a recorded vote was requested, further proceedings were tabled under the House rules.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.